Uttarakhand High Court
Sunil Kumar Gupta vs State Of Uttarakhand And Another on 18 May, 2017
Author: U.C.Dhyani
Bench: U.C.Dhyani
1
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No. 1300 of 2015
(Under Section 482 Cr.P.C.)
Sunil Kumar Gupta ............. Applicant
versus
State of Uttarakhand & another .......... Respondents
Mr. S. K. Jain, Senior Advocate, assisted by Mr. Siddhartha Jain,
Advocate for the applicant.
Mr. Pramod Tiwari, Brief Holder for the State.
Mr. Neeraj Garg, Advocate for the respondent no.2.
U.C. Dhyani, J. (Oral)
By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the impugned order dated 10.09.2015 passed by the 1st Addl. Sessions Judge, Dehradun in criminal revision no. 208 of 2015, Deepak Dogra vs State & another.
2. The applicant initiated proceedings against respondent no. 2, by filing a criminal complaint case. Evidence was adduced by the complainant under Section 244 Cr.P.C. charge under Section 420 IPC read with Section 120- B IPC was framed against the accused by the trial court.
3. Aggrieved against the same, the accused filed a criminal revision, which was allowed. The matter was remitted back to the trial court for fresh consideration as per 2 law and as per observations made by learned Lower Revisional Court, vide order dated 10.09.2015. Aggrieved against the same, present application under Section 482 Cr.P.C., has been filed by the complainant (applicant herein).
4. Before this Court proceeds to decide present application under Section 482 Cr.P.C., it feels its bounden duty to highlight the scope of discharge, as laid down by Hon'ble Apex Court in a catena of decisions, including the one in Shoraj Singh Ahlawat & others vs State of U.P. & another, AIR 2013 SC 52.
5. First of all, the Court has to see what is the scope of interference in framing of charge? The Hon'ble Supreme Court in Shoraj Singh Ahlawat (supra) while relying upon various decisions rendered in Preeti Gupta & another vs. State of Jharkhand & another (2010) 7 SCC 667, Union of India vs. Prafulla Kumar Samal & another, (1979) 3 SCC 4; Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005) 1 SCC 568; Onkar Nath Mishra & others vs. State (NCT of Delhi) & another, (2008) 2 SCC 561; Shakson Belthissor vs. State of Kerala & another, (2009) 14 SCC 466 and Rumi Dhar (Smt.) vs. State of West Bengal & another, (2009) 6 SCC 364, has observed as follows:
"8. On behalf of the appellant it was argued on the authority of the decisions of this Court in Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667, Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, Sajjan Kumar v. Central ureau of Investigation (2010) 9 SCC 368, State of 3 Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561, Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v. State of West Bengal and Anr. (2009) 6 SCC 364, that while considering an application for discharge the Court can examine the evidence on record and discharge the accused persons if there is no possibility of the accused being found guilty on the basis of such evidence specially in cases where the accused produces unimpeachable evidence in support of his defence. It was also contended that while examining whether the Court should or should not discharge the accused, it must be remembered, that Section 498-A of the IPC is a much abused provision and that exaggerated versions of small incidents are often resented to falsely implicate, harass and humiliate the husband and his relatives. Applying the principles set out in the above decisions the appellants were, according to Ms. Geeta Luthra, learned counsel appearing for them, entitled to a discharge not only because there was an inordinate delay in the filing of the complaint by respondent No.1 but also because the statements made under Section 161 Cr.P.C. by the witnesses who were either planted or merely chance witnesses were contradictory in nature. It was argued that two Investigating Officers having investigated the matter and found the allegations to be false, there was no reason for the Court to believe the story set up by the wife who had suffered a decree for divorce in regard to which she had written to the Army Authorities a letter dated 2nd October, 2006 stating that she was not pursuing the matter in any Court. Appellant No.3-Naveen Ahlawat having got re-
married on 30th October, 2006 the incident referred in the complaint was a fabrication which aspect the Courts below had failed to consider thus failing to protect the appellants against harassment and the ignominy of a criminal trial.
49. On behalf of respondent No.2, it was per contra argued that her husband had filed a divorce petition against her in the Family Court, Meerut showing respondent No.2 to be residing with her parents at 327, Prabhat Nagar, Meerut, whereas she was actually residing with the appellants along with her daughter at No. 9, Tigris Road, Delhi Cantt, Delhi. It was further argued that appellant No.3 had obtained an ex parte decree order of divorce by fraudulent means and by forging signatures of respondent No.2, acknowledging receipt of the notice which she had never received from the concerned Court. This was conclusively established by the fact that the ex parte decree dated 31st May, 2006 had been eventually set aside by the Court in terms of order dated 28th July, 2007. Allegations regarding physical torture of respondent No.2 and her being abandoned on the road on the date of incident in question as also the allegation about dowry harassment were factually correct and made out a clear case for prosecuting the appellants. Appellant No.3 had, according to the counsel for the respondent, married one Aditi on 30th October, 2006. It was also argued that letter referred to by appellant No.3 as also letter dated 2nd November, 2006 allegedly written by respondent No.2 were forgeries committed by the appellants. The trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for discharge set up by the appellants could be examined only after the case had gone through full-fledged trial. Reliance was placed upon a decision of this Court in Union of India v. Prafulla Kumar Samala and Anr. (1979) 3 SCC 5.
10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether 5 the accused or any one of them deserved to be discharged. Section 239 is as under:
"239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to 6 frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in- law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence ."
[Emphasis Supplied]
12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In Som Nath's case (supra) the legal position was summed up as under:
"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, 7 though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. "
[Emphasis Supplied]
13. So also in Mohanlal's case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal's case (supra) is in this regard apposite:
"8. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
14. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, this Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused 8 cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.........
xx xx xx xx
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material..."
[Emphasis Supplied]
15. Even in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section 239 of the 9 Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed:
"...While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law...
16. To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and 10 the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
[Emphasis Supplied]
6. To proceed further, it is the law, in clearest of the clear terms that, in charge sheeted case or in a criminal complaint case, no document can be accepted, as a matter of defence, to be filed by the accused at the stage of framing of charge.
7. Learned Revisional Court has committed manifest error of law while accepting certain documents, as defence, to be taken for consideration at the time of framing of charge/seeking discharge by the accused. Learned Revisional Court has fell in error by saying that those documents, which are factually unassailable and not controvertible can be taken as defence evidence at the stage of framing of charge. Learned Revisional Court has not applied law in its correct perspective, while writing the order under challenge.
118. Hon'ble Apex Court, in Kanti Bhadra Shah vs State of West Bengal, reported in 2000 AIR SCW 52, has held in para no.12 of said judgment as under:
12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guidelines that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
13. In the present case as the Metropolitan Magistrate has chosen to frame the charge, the High Court, when moved by the accused for quashment of the charge, could have re-examined the records to consider whether the charge framed was sustainable or not. If the High Court decides to quash the charge it is open to the High Court 12 to record the reasons thereof. The present order of the High Court is one of setting aside the charge without stating any reason. But the direction to the Magistrate to consider the materials once again and then to frame a charge for the same offence (if the Magistrate reaches the opinion that there is ground for presuming the commission of offence) is simply to repeat what the Metropolitan Magistrate had done once at the first instance. To ask him to do the same thing over again is adding an unnecessary extra work on the trial court. Be that as it may, the State has not challenged the order of the High Court. Hence we are not in a position to set aside the impugned order of the High Court. We leave the order as such by making the aforestated observations.
We leave it to the Metropolitan Magistrate to exercise his functions under Section 239 or 240 of the Code as he deems fit in the light of the observations made above.
9. While rendering the judgment under challenge, the Lower Revisional Court has used the language, which is ordinarily used by a Constitutional Court while exercising inherent jurisdiction. He was simply hearing a criminal revision. The order impugned is, therefore, interfereable.
10. It will also be worthwhile to reproduce a few excerpts from a decision rendered by Hon'ble Apex Court in State of Orissa vs. Debendra Nath Padhi, AIR 2005 Supreme Court 359, herein below:
8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment 13 of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit 'the case' to the Court of Session and send to that court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope 14 of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same- whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code.
[Emphasis Supplied]
11. Application under Section 482 Cr.P.C. is allowed. Order impugned is hereby set aside.
12. Learned Trial Court is expected to conclude the proceedings of criminal complaint case no. 217 of 2014 Sunil Kumar Gupta vs. Deepak Dogra, as early as possible, but strictly in accordance with law.
(U.C.Dhyani,J.) 18 .05.2017 Balwant 15